Algernon Sidney argues that a law that is not just is not a law (1683)

The radical English republican political theorist Algernon Sidney (1622-1683) asks why subjects of the King should obey the law. He concludes that we should obey not because of threats of punishment or coercion but because the law was based upon the “eternal principle of reason and truth”:

SECTION 11: That which is not just, is not Law; and that which is not Law, ought not to be obeyed.

… the directive power of the law, which is certain, and grounded upon the inherent good and rectitude that is in it, is that alone which has a power over the conscience, whereas the coercive is merely contingent; and the most just powers commanding the most just things, have so often fallen under the violence of the most unjust men, commanding the most execrable villainies, that if they were therefore to be obeyed, the consciences of men must be regulated by the success of a battle or conspiracy, than which nothing can be affirmed more impious and absurd….

If this were so, the governments of the world might be justly called magna latrocinia; and men laying aside all considerations of reason or justice, ought only to follow those who can inflict the greatest punishments, or give the greatest rewards. But since the reception of such opinions would be the extirpation of all that can be called good, we must look for another rule of our obedience, and shall find that to be the law, which being, as I said before, sanctio recta, must be founded upon that eternal principle of reason and truth, from whence the rule of justice which is sacred and pure ought to be deduced, and not from the depraved will of man, which fluctuating according to the different interests, humors and passions that at several times reign in several nations, one day abrogates what had been enacted the other. The sanction therefore that deserves the name of a law, which derives not its excellency from antiquity, or from the dignity of the legislators, but from an intrinsick equity and justice, ought to be made in pursuance of that universal reason to which all nations at all times owe an equal veneration and obedience.

SECTION 11: That which is not just, is not Law; and that which is not Law, ought not to be obeyed.

Our author having for a long time pretended conscience, now pulls off his mask, and plainly tells us, that ’tis not on account of conscience, but for fear of punishment, or hopes of reward, that laws are to be obeyed. That familiar distinction of the Schoolmen, says he, whereby they subject kings to the directive, but not to the coactive power of the law, is a confession, that kings are not bound by the positive laws of any nation, since the compulsory power of laws is that which properly makes laws to be laws. Not troubling myself with this distinction of the Schoolmen, nor acknowledging any truth to be in it, or that they are competent judges of such matters, I say, that if it be true, our author’s conclusion is altogether false; for the directive power of the law, which is certain, and grounded upon the inherent good and rectitude that is in it, is that alone which has a power over the conscience, whereas the coercive is merely contingent; and the most just powers commanding the most just things, have so often fallen under the violence of the most unjust men, commanding the most execrable villainies, that if they were therefore to be obeyed, the consciences of men must be regulated by the success of a battle or conspiracy, than which nothing can be affirmed more impious and absurd. By this rule David was not to be obeyed, when by the wickedness of his son he was driven from Jerusalem, and deprived of all coercive power; and the conscientious obedience that had been due to him was transferr’d to Absalom who sought his life. And in St. Paul’s time it was not from him who was guided only by the spirit of God, and had no manner of coercive power, that Christians were to learn their duty, but from Caligula, Claudius, and Nero, who had that power well established by the mercenary legions. If this were so, the governments of the world might be justly called magna latrocinia; and men laying aside all considerations of reason or justice, ought only to follow those who can inflict the greatest punishments, or give the greatest rewards. But since the reception of such opinions would be the extirpation of all that can be called good, we must look for another rule of our obedience, and shall find that to be the law, which being, as I said before, sanctio recta, must be founded upon that eternal principle of reason and truth, from whence the rule of justice which is sacred and pure ought to be deduced, and not from the depraved will of man, which fluctuating according to the different interests, humors and passions that at several times reign in several nations, one day abrogates what had been enacted the other. The sanction therefore that deserves the name of a law, which derives not its excellency from antiquity, or from the dignity of the legislators, but from an intrinsick equity and justice, ought to be made in pursuance of that universal reason to which all nations at all times owe an equal veneration and obedience. By this we may know whether he who has the power does justice or not: Whether he be the minister of God to our good, a protector of good, and a terror to ill men; or the minister of the Devil to our hurt, by encouraging all manner of evil, and endeavouring by vice and corruption to make the people worse, that they may be miserable, and miserable that they may be worse. I dare not say I shall never fear such a man if he be armed with power: But I am sure I shall never esteem him to be the minister of God, and shall think I do ill if I fear him. If he has therefore a coercive power over me, ’tis through my weakness; for he that will suffer himself to be compell’d, knows not how to die. If therefore he who does not follow the directive power of the law, be not the minister of God, he is not a king, at least not such a king as the Apostle commands us to obey: And if that sanction which is not just be not a law, and can have no obligation upon us, by what power soever it be established, it may well fall out, that the magistrate who will not follow the directive power of the law, may fall under the coercive, and then the fear is turned upon him, with this aggravation, that it is not only actual, but just. This was the case of Nero; the coercive power was no longer in him, but against him. He that was forced to fly and to hide himself, that was abandoned by all men, and condemned to die according to ancient custom, did, as I suppose, fear, and was no way to be feared. The like may be said of Amaziah king of Judah, when he fled to Lachish; of Nebuchadnezzar, when he was driven from the society of men; and of many emperors and kings of the greatest nations in the world, who have been so utterly deprived of all power, that they have been imprisoned, deposed, confined to monasteries, killtd, drawn through the streets, cut in pieces, thrown into rivers, and indeed suffer’d all that could be suffer’d by the vilest slaves.

About this Quotation:

The republican radical Algernon Sidney (1622-1683) wrote his best known work on the eve of his execution for treason so it is not surprising that there appear to be some autobiographical reflections in some passages such as these ones about “the depraved will of man, which fluctuat(es) according to the different interests, humors and passions that at several times reign in several nations” as it was during in the Restoration of the Stuart Monarchy which he strenuously opposed, and in this one “If he has therefore a coercive power over me, ’tis through my weakness; for he that will suffer himself to be compell’d, knows not how to die.” Of course, Sidney refused to be compelled and was willing to die for his beliefs. He wrote the Discourses between 1681 and 1683 (the year of his death) in opposition to Filmer’s defense of the divine right of monarchs which appeared in 1680. The main grounds for Filmer’s belief that we should obey the king were the following: the historical tradition which lay behind the crown, the authority given to him and his family by god, and the fact that the King and his supporters had the weapons to enforce their decisions. Sidney rejected all three grounds as illegitimate and wrong, being “merely contingent” things, and boldly asserted that “that which is not just, is not Law; and that which is not Law, ought not to be obeyed” since this was based upon “inherent good and rectitude.” It is not therefore surprising that Sidney’s book was a favourite among the American revolutionaries like Thomas Jefferson who had a copy in his library.